We need to amend the Constitution to ban gay marriage because people getting married to show their love of each other is an abomination… and because the idea of two guys or two ugly chicks making out with each other is just gross… and we can’t stop thinking about what it would be like to try it! We need to amend the Constitution to ban the burning of the American flag except by the Boy Scouts… and anyone who wants to dispose of a flag the way it is supposed to be disposed of, never mind that you can’t make people respect a symbol by passing laws which order them to We need to amend the Constitution to ban abortion because the wealthy can ALWAYS find doctors to take care of THEIR wives, mistresses and daughters! We need to amend the Constitution to allow school prayer and the reading of the Bible in school even though Jesus said “Do not practice your piety in public.”! We need to amend the Constitution to permit the use of the word ‘God‘ in the Pledge of Allegiance and the national motto because if WE are going to suck up to him, we damn sure want everyone else to be required to, also! We need to amend the Constitution and we have to amend it NOW, because the sky is falling on our heads… AAAAHHHHHH!!!!!!
For all of the ideologues who think that amending the Constitution is the appropriate way to enshrine their particular prejudices and passions, I want to ask you a question. Very simply, “Have you ever actually read The Constitution?”
The Constitution is a relatively simply document. Its length is only 4543 words, which isn’t all that much longer than this article. One key thing that is important about the Constitution is not what it says, but what it does NOT say. The Constitution does NOT say anything about social rules or the moral conduct of ‘we the people’ of The United States. The Constitution is an owner’s manual of how to operate our government. It does not tell its citizens how to live their lives. In fact, with the exception of our disastrous foray into social policy with the 18th Amendment, which gave us both prohibition AND well financed organized crime, there is nothing in the Constitution, the Bill of Rights or any subsequent amendment which deals with dictating social or moral behaviors or beliefs to the American people.
Nowhere in the Constitution is a single word which even speaks to specific imposed restrictions on the rights of the citizens, unless you count treason, insurrection, piracy, counterfeiting, malfeasance in office or other such defined crimes as rights which are denied to ‘we the people’. It doesn’t even speak to obligations of ‘we the people’ TO the government, though it does speak of obligations which the government has to ‘we the people’. In fact, other than talking about issues such as voting, or rights before the courts, the Constitution itself barely even deals with individual citizens.
The Constitution itself does not say anything about WHEN, WHY, or FOR WHAT REASONS it should be amended. THOSE questions are left up to the citizens and the legislators of The United States to answer. Article V of The Constitution, in its entirety, says:
“The Congress, whenever two thirds of both houses shall deem it necessary, shall propose amendments to this Constitution, or, on the application of the legislatures of two thirds of the several states, shall call a convention for proposing amendments, which, in either case, shall be valid to all intents and purposes, as part of this Constitution, when ratified by the legislatures of three fourths of the several states, or by conventions in three fourths thereof, as the one or the other mode of ratification may be proposed by the Congress; provided that no amendment which may be made prior to the year one thousand eight hundred and eight shall in any manner affect the first and fourth clauses in the ninth section of the first article; and that no state, without its consent, shall be deprived of its equal suffrage in the Senate.”
Thus, whenever someone raises the issue of amending the Constitution, the first question that should be asked is: “Is the issue itself appropriate for inclusion?”
Amending The Constitution is, and was intended by the framers of The Constitution to be, a VERY difficult and VERY time consuming process. It is not supposed to be something that happens very often or for trivial reasons. To see how meaningless a constitution becomes when it can be easily and frequently amended one need only look at the state constitutions of either Texas (amended at least 632 times in 136 years [although Texas voters subsequently rejected at least 176 of them after our legislature passed them]) or Alabama (at 357,157 words it is about 40 times longer than the US Constitution and even three times longer than the longest national constitution of any sovereign nation in the world India, whose constitution has 444 articles, 12 schedules and 94 amendments, with a total of 117,369 words and is, unbelievably, an even worse document than the state constitution of Texas, which has been amended at least 798 times the last amendment was #799, but even the Alabama legislature couldn’t even keep track of how many there were and Amendment #693 doesn’t even exist in 108 years most of those amendments affecting only single individual counties or even cities, or regulate such minutiae at the salary as the Greene County Probate Judge).
Amendments to state constitutions, such as the one now being called for in Iowa by those scared to death by the idea of two people of the same sex even holding hands, often also seem to ignore the fact that the US Constitution takes precedence over them and has this little thing known as Article IV which includes such provisions as the Full Faith and Credit Clause (Section 1: “Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.”) and the Privileges and Immunities Clause (Section 2: “The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.”).
As difficult as it is to amend the US Constitution, it is therefore necessary and proper for both the Legislative and the Judicial branches to interpret and even expand on the meanings of both The Constitution AND of its 27 amendments. Please note, however, that while the very names of those two branches tells us of THEIR roles in that process (to ‘legislate’ and to ‘adjudicate’), no such power is given to the Executive branch, whose task is to ‘execute’ the laws and provisions of The Constitution and the other two branches. This was yet another aspect of our Constitutional government which was not understood by King George (Bush) II or his cronies in crime. Many people who want to use legislation (either federal or state) to counter or go around provisions of The Constitution, however, also show their ignorance of the document as Article VI specifically states that “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”
The Constitution of the United States was not conceived or written to tell ‘we the people’ how to live their personal lives or even to place burdens on them towards their Society or their government. It does, however, tell the government how to operate and imposes obligations on it towards ‘we the people’. The Constitution is not a downward directed document, written on the mountain and handed down to ‘we the people’ by a supreme being who must be obeyed. The Constitution was not written by the government to ‘we the people’. The Constitution was, instead, written by ‘we the people’ to tell their government what limits and restrictions are placed upon IT, and what powers and authority are granted to it by the citizens who agreed to be governed by it. I wish people would realize that when they think about using The Constitution for shaping American society according to their own preferences or to try to tell people how to live or what morals they should adopt based on their own prejudices, bigotries and beliefs.
So, if The Constitution focuses on the operation of our government rather than on the behaviors of its citizens, where does the whole debate about our rights originate? The framers of The Constitution believed in ‘natural rights’, the idea that people, by their very nature, HAVE (not ‘are given’, but by birth ‘have’) certain rights which precede the establishment of any government. When The Constitution was written, there was a huge debate about even listing the rights of the citizens of The United States because some feared that the very fact that some rights were enumerated within The Constitution would mean that there would be those who would later argue that rights which were NOT enumerated in The Constitution were not ones which the citizens would have. In Federalist #84, Alexander Hamilton asks “Why declare that things shall not be done which there is no power to do?” and writes that a “bill of rights is not only unnecessary but even dangerous” for that very reason. James Madison told Thomas Jefferson that “I conceive that in a certain degree … the rights in question are reserved by the manner in which the federal powers are granted.” The fear of many was the very idea that enumerating ANY rights within The Constitution be interpreted by any moron as meaning that citizens only had rights BECAUSE of The Constitution. The very intention of the framers was to emphasis that the entire purpose of creating The United States was to protect the rights of the citizens and that the very idea that rights had to be ‘given’ TO ‘we the people’ was monarchical and anathema to everything they believed in and stood for. Connecticut’s Roger Sherman, in his own proposed draft of a Bill of Rights says that “The people have certain natural rights which are retained by them when they enter into Society.”
Much of the concept of natural rights which the framers believed in came from John Locke, the great philosopher and theorist of natural rights. He believed that the primary justification for even founding any government was specifically to make those rights more secure than they would be in a state of nature (a Society with NO government). Thus, the very reason to join together IN a governed Society is to provide ‘we the people’ protection of those rights by being part of a collective, governed Society which is not present in a lawless Society, in which the strong are able to prey on the weak and take those rights away from ‘we the people’. This is where the framers showed their true genius and foresight by giving us the 9th and 10th Amendments to The Constitution, the “if we forgot something, it’s covered, also” amendments.
The 9th Amendment, in its entirety, states that:
“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”
The 10th Amendment, in its entirety, says that:
“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
These are both very interesting Amendments. The 10th is usually used to support arguments which advocate State’s Right’s against federal power by people without an awareness that States do not have rights, only powers (as specified in the literal wording of the Amendment), and that those powers are granted by the citizens. It is usually ignored that the 10th tells us that, in addition to having rights, as provided for in the 9th, ‘we the people’ ALSO have power. By the very wording of The Constitution, our government only has certain powers and authorities (specifically spelled out within The Constitution), while ‘we the people’ have rights IN ADDITION to powers and authorities. While there has been a lot of talk about the 10th Amendment, especially since the end of Reconstruction in The South, and since the movement towards recognizing the civil rights of ALL citizens in the 40s and 50s, the 9th may very well be the most ignored part of the entire Constitution. There even seems to be more case law that is based on the 11th Amendment (“The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.”), which was passed in response to one single Supreme Court case in 1793 (Chisholm v. Georgia), than there has been based on the 9th. Most of the court cases which would seem to be obvious ones about the retained rights and powers of the citizens under the 9th and 10th Amendments, such as Roe v. Wade, typically hinge on arguments which use the provisions of the Section 1 clauses of the 14th Amendments regarding Due Process and/or Privileges and Immunities (“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”) as their foundations.
Why IS the 9th Amendment so rarely raised, utilized or argued in American Courts? I think it is, very simply and fundamentally, because both the courts and our government are afraid of it. If we followed the literal provisions of the 9th Amendment, both the courts and our entire government would have MUCH less power over the citizens than they would like. If we observed the provisions of the 9th Amendment, the citizens would never have the burden to prove that they have certain or specific rights, the government and the courts would have the burden to prove that they DON’T. The party on whom the burden of proof rests has an MUCH more difficult case to make than the one which has the presumption of being correct or innocent. No government in history has ever wanted to bear that burden when they are challenging their own citizens, and courts are a function of government. Into this fray go those who advocate that The Constitution favors the government over the governed. One of the most prominent advocates of reading The Constitution as only protecting enumerated rights was Judge Robert Bork and his famous ‘inkblot’ interpretation of the 9th Amendment. About the beliefs held by Judge Bork and those who interpret The Constitution using the same flawed concept of ‘originalism’ which he uses, that the only rights belonging to the citizens are those which are specifically spelled out in The Constitution and that any other ‘discovered’ rights are illegitimately ‘created’ by the courts, The Oxford Companion to The Supreme Court of the United States says:
Yet this skeptical view of unenumerated rights would have the practical effect of converting the original scheme of limited [and] defined powers [of the government] in a sea of individual rights into a scheme of limited enumerated rights in a sea of [unlimited] government powers.”
I would also ask those who advocate such positions as Judge Bork’s for his ‘original intent’ interpretation of The Constitution, “Why do you think that the framers of The Constitution destroyed all of their notes and minutes from the entire Constitutional Convention if not to keep those who followed them from relying on their intent and, thus, giving us the freedom to make this country what we want it to be and to be able to adapt it to the changing needs of Society?” While I have my own beliefs about requiring legislators to specify the goals and objectives for any legislation that they create (in order to make it easier for us to get rid of that legislation later), I can find no fault with the wisdom of the founders to deny us the knowledge of their ‘original’ intentions.
Anthony de Jasay, a Hungarian-born libertarian anarchist philosopher and economist who is best known for his writings against ‘the state’, talks about using a ‘Presumption of Liberty’ concept of natural rights. De Jasay argues that “liberty should be presumed, not because we have a “right” to it, or because it is the most important value or goal, but because it follows from the requirements of epistemology and logic.” In other words, instead of appealing to a person’s preference for liberty, logic dictates that liberty should be presumed. The critical rationalist and philosopher of science, Gerard Radnitzky, was so impressed with de Jasay’s case for the presumption of liberty that he stated that “for the first time the political philosophy of libertarianism and of classical liberalism has gotten a solid base in logic and epistemology.”
There is much to be considered by anyone who would advocate amending The Constitution with a goal of enshrining bigotry or prejudice within it, or of using it to take away rights from our citizens. To do so would be against every idea upon which The United States was created. I personally think that there should be (at least) four levels of rights and powers which should be considered by anyone who thinks they should have the right to tell everyone else what freedoms they do and do not have. They are, in order from highest to lowest:
1.) Rights that are retained by the people;
2.) Rights that are voluntarily surrendered by the people to the government;
3.) Rights that are suppressed by the people in our ‘voluntary’ association in a governed Society; and
4.) Rights that are repudiated by the people through the granting of certain powers and authority to the government.
Governments may have power, but only people have rights, and it is simply wrong for anyone to try to use our Constitutions to try to take away ANY of those rights. That is a ‘right’ which I do not believe anyone of ‘we the people’ ever gave away to anyone else.
As always, I want to acknowledge books and the Internet for giving me invaluable assistance in being able to use my mind and to write articles such as this. A mind is a terrible thing to waste. Special thanks must be given, as is common for my constitutional articles, to The Oxford Companion to The Supreme Court of The United States (second edition), edited by Kermit L. Hall.
Rhys M. Blavier
Truth, Justice and Honor… But Above All, Honor
© copyright 2008 by Rhys M. Blavier